NFL Vow To End ‘Race-Norming’ Holds Civil Rights Lessons

Posted July 12th, 2021.

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By Andrew Melzer, Rebecca Ojserkis and Lucy Zhou

Law360 (July 12, 2021, 5:36 PM EDT) — In August 2020, former NFL players Kevin Henry and Najeh Davenport filed suit in Pennsylvania federal court challenging the use of “race-norming” to systematically disfavor Black players who submitted claims on the billion-dollar NFL concussion settlement.[1]

In the field of neuropsychiatry, race-norming — also known as Heaton norms[2] — is the use of broad demographic data and trends to adjust the results of cognitive testing. This controversial practice has received heavy criticism.[3]

On behalf of themselves and a class of Black former NFL players, Henry and Davenport alleged that race-norming was being used in the claims administration process to artificially reduce estimates of Black players’ preconcussion cognitive functioning levels.[4]

Because their scores were manipulated to start lower on the cognitive scale, the plaintiffs claimed that Black players were deemed to have suffered lesser impairments from their concussions than their medical diagnoses and tests otherwise indicated, and that as a result, large numbers of Black claimants were determined not to qualify for settlement payments despite sustaining incapacitating injuries comparable to their white counterparts.

According to the plaintiffs, this disparity was based solely on the incorporation of a malignant racial presumption of inherent intellectual inferiority into the claims protocol.

The U.S. District Court for the Eastern District of Pennsylvania dismissed the Henry lawsuit on procedural grounds in March 2021, holding that it was an “improper collateral attack” on the settlement.[5] But it expressed concerns about the use of race-norming, and accordingly ordered the parties into mediation before a magistrate judge to attempt to address the issue.[6] The Henry plaintiffs appealed the dismissal to the U.S. Court of Appeals for the Third Circuit[7] and also sought to intervene in the underlying concussions case.[8]

Until recently, we were going to write an expository article detailing the use of race-norming in connection with the NFL concussion settlement — arguing that the incorporation of explicit racial adjustments to disfavor and penalize Black claimants clearly violated Title 42 of the U.S. Code, Section 1981 and potentially implicated other civil rights protections.

But on June 2, the NFL and class counsel voluntarily pledged to abandon race-norming in the assessment of all settlement claims, both prospectively and retrospectively.[9] From the NFL’s announcement, it appears that there will be a do-over on claims denied because of race-based adjustments — although the proverbially devilish details remain to be worked out between the parties.[10] For now, given the NFL’s spotty track record on racial justice,[11] some players remain skeptical.[12]

This development, while commendable, is long overdue and would not have been necessary had race-norming not been implemented in the first place. Nevertheless, we take the opportunity presented by this important step forward to offer a few observations.

In this article, we first provide some background on race-norming and how it was being used in the concussion settlement claims process. We proceed to identify four lessons and takeaways that civil rights advocates should glean from this case.

What Is Race-Norming, and How Was it Used in the Settlement?

In short, race-norming is a statistical technique that alters the conclusions drawn from neuropsychological testing by assuming that Black individuals categorically have lower baseline cognitive function than their white counterparts. Because awards under the settlement were determined by comparing claimants’ pre- and post-concussion cognitive levels to measure their loss of function, the use of race-norming stacked the deck against Black players.

Even where they had the same symptoms and test scores as white players, they were far less likely to be deemed eligible for an award — even where clinicians found clear eligibility — and their awards were comparatively smaller. This biased system generated many false negatives — erroneous conclusions that Black players were not substantially impaired by concussions that they suffered in their football careers.

Take, for example, Amon Gordon, a former Stanford athlete who was diagnosed with dementia at age 33 after an eight-season NFL career.[13] Gordon’s claim was initially approved by the claims administrator based on a qualifying neurological diagnosis and other extensive evidence. But the NFL objected and appealed that decision; Gordon suspects that it did so in order to enforce the use of race-norming protocols, a contention that the league denies.

The Eastern District of Pennsylvania ultimately denied Gordon’s claim without meaningful explanation. Gordon still awaits an explanation for the suspicious denial of his claim.[14] Henry and Davenport, on behalf of themselves and others similarly situated, allege that their claims were denied solely because of race-norming.

The effects of the NFL’s race-norming regime have been enormous. Based on a sample conducted, it is estimated that approximately three times the number of Black claimants may have qualified for settlement payments absent the use of race-based adjustments.[15] The sole determinative factor was race — namely the incorporation of anti‑Black stereotypes into the claims formula.[16]

Individually, this left many Black players without a remedy for their lifelong, debilitating injuries. And on a macro level, by suppressing a large proportion of claims, the practice of race-norming drastically diminished the NFL’s overall liability under the settlement.

Indeed, in a league in where roughly 70% of the players are Black,[17] given the over $865 million in payouts and an average award of over $675,000 to date,[18] it can be projected that race-norming might ultimately reduce the total settlement payout by hundreds of millions of dollars or more.[19]

While the parties to the settlement long declined to course-correct and even perpetuated race-norming, the Henry plaintiffs and their counsel shed critical light on the issue; and, inevitably, the pressure mounted in the NFL community and the court of public opinion. Now, following the NFL’s announcement and the apparent progress made in the mediation, it is anticipated that the settlement administration process will recommence without baked-in racial bias in the claims formula.

Observations and Takeaways From the NFL’s Changed Course on Race-Norming

Need for Interdisciplinary Approaches to Achieve Social Progress

As the league’s June 2 announcement illustrates, a lawsuit can achieve its desired ends even without formally prevailing in court. The Henry action was dismissed on procedural grounds, and the Gordon appeal remains pending. But both cases seem to be having a transformative effect on the settlement, and even on the broader use of race-norming and similar methods to disfavor people of color, particularly Black Americans, largely because the litigation did not occur in a vacuum.

The former players used a cross-cutting strategy to take on an injustice and bring about social change. The suit was coordinated with a media campaign, commentary from the medical and scientific community, and organizing by NFL families to submit 50,000 signed petitions to the court.[20]

Together, these efforts shed light on a blatantly discriminatory practice and created key pressure points on the parties to reform the settlement. And they may yield a successful outcome more quickly than would otherwise be possible through the traditional litigation process.

Civil rights practitioners should take heed of this interdisciplinary approach, as it is often advisable to develop a media strategy and tap into political and social movements and networks. Such advice is not novel, but the need for multipronged advocacy has only grown more pressing in our increasingly divided society and with our ever more conservative bench.

We recognize that litigation is only one means to an end and tends to work most effectively when accompanied by other methods of advocacy. The client’s interests and goals remain paramount.

Importantly, the Henry lawsuit arose in the context of a cultural moment of greater awareness and attention to systematic and institutional racism. Even compared to the time the concussion settlement was reached in 2015, there is greater recognition of these issues and a more urgent societal imperative to call them out and address them head-on.

Surely, after years of controversy, the league did not want to be seen as backtracking on its recent proclamations and professed commitments on racial justice. Not only are employers and institutions impacted by growing shifts in race consciousness, but so are lawyers and judges.[21]

Sunlight Is the Best Disinfectant

In addition to underscoring the call for multidisciplinary approaches to social justice issues, the race-norming reversal is also instructive on the need for transparency and group action in the adjudication of civil rights claims. Mandatory arbitration of civil rights, employment and similar types of claims is especially pernicious because it may act to prevent the type of public relations strategies used here and shelter a wrongdoer’s conduct from scrutiny and accountability.

Had the NFL players been required to individually (and confidentially) arbitrate their claims, it is doubtful that they would have been able to coordinate their activities and draw upon public sentiment. We implore lawmakers to adopt a legislative fix to an ever-burgeoning regime of forced arbitration imposed by corporations and other institutions upon workers, consumers and other vulnerable individuals.

Likewise, confidentiality and nondisclosure agreements may inhibit the pursuit of justice and impede efforts to hold repeat offenders accountable. The #MeToo movement in particular has led to recent strides in this area. For example, California now prohibits settlement provisions that would bar sexual assault and harassment victims from disclosing their experiences.[22]

Even such laws may have their detractors — with some practitioners contending that victims who truly do not want publicity should be able to obtain a premium for voluntarily agreeing to confidentiality — but the more common and likely scenario, in our experience, is that of employers and other defendants imposing confidentiality terms as a condition of settlement.[23]

In general, we welcome efforts to increase accountability and to prevent wrongdoers from hiding their conduct from other potential victims and the public.

Pitfalls and Injustices of Racial Bias Proceeding Under the Cover of Science

The NFL concussion settlement exemplifies how racial biases can infect purportedly “objective” measures — e.g., cognitive testing. The medical field has made tremendous strides in recent decades in identifying and treating neurological conditions like those suffered by football players.

Although we should laud advancements in diagnostic and clinical instruments and standards, we must remain vigilant that the measures’ design and deployment do not inadvertently reinforce racial biases. In fact, there is a long history of racist pseudoscience (e.g., eugenics) being used to justify slavery, segregation and other egregious practices.[24]

Cognitive assessments and statistical formulas are designed and interpreted by human beings, with all of their attendant biases.[25] Such measures contain inputs and produce outputs that may reflect systemic bias.[26]

But because they come with the imprimatur of science, technology and/or objectivity, they are often wrongfully presumed to be valid. For example, due to flaws in the calibration process, oximeter devices do not accurately read blood oxygen levels for individuals with darker skin tones.[27]

Despite long-standing awareness of the biases baked into “objective” measures like algorithms, their use is on the rise in employment,[28] the criminal legal system,[29] housing[30] and other sectors.

One need look no further than the history of race-norming for evidence of how a purportedly neutral and impartial technique gets deployed in racially harmful ways. While under the NFL concussion settlement, race-norming was used to depress Black players’ preconcussion cognitive functioning, a converse scenario arises in the death penalty context: Prosecutors have used race-norming to manipulate and artificially raise the IQ scores of Black and Latino defendants of color above the threshold needed to render them eligible for execution.[31]

The covert, and sometimes overt, creep of discrimination into scientific and technological advancements is troubling for numerous reasons, but we wish to highlight two in particular.

First, these fields often involve complicated, unfamiliar subject matter that require specialized knowledge and training. Yet people are more likely to rely on mental shortcuts, or heuristics, when their cognitive resources are taxed by complex topics.[32] Racial stereotypes are one type of heuristic device on which people subconsciously lean when they process or make judgments about dense or ambiguous information.[33]

Second, people interpret objective measurements, perceived as offering some form of universal truth, as disproportionately persuasive or even dispositive. This phenomenon has been documented in a variety of contexts, from police body cameras[34] to neuroscience.[35]

These flaws do not militate toward discarding objective instruments in wholesale or indiscriminate fashion — not least because subjectivity is the ultimate breeding ground for bias — but we raise these issues to caution lawyers to remain aware of the risks of importing bias through “objective” means.

This critique, shared by experts in the field,[36] should guide the NFL and class counsel in crafting a new system to evaluate players’ claims. The concussion case serves as an important reminder that while racial equity is not synonymous with formal colorblind neutrality, courts and practitioners should not countenance the use of crude and inaccurate norms invoked selectively to harm Black individuals.[37]

The pursuit of racial equity requires transparent discussion and correction of problematic structures — in this case, a settlement methodology that imposes a staggering penalty on claimants simply for being Black. And placing the voices of members of impacted groups at the front and center of any solution is essential.

Impact of Race and Gender in Calculating Tort Damages

While the NFL’s use of race-norming is one of the most recent, high-profile examples of systemic bias in the calculation of damages, consideration of race and gender in the valuation of civil damages is hardly a new or unique phenomenon.

Indeed, in the personal injury and wrongful death context, it is an all-too-common practice for courts, experts and lawyers to rely on race- and gender-based statistical data to assess loss of future earning capacity, resulting in reduced damages awards for women and members of historically marginalized racial groups.

For instance, in a 2009 survey of members of the National Association of Forensic Economics, less than 8% of respondents indicated that they would not rely on race or gender to calculate a lost wages award for a hypothetical two-year-old Black male who would be unable to work in the future.[38]

To calculate lost future earnings — in employment cases as well as personal injury and wrongful death matters — forensic economists typically consider a plaintiff’s education level and salary history. But because of the persistent wage gap that results in women and many people of color earning less than their white and male counterparts, reliance on past earnings history to calculate future income replicates and perpetuates those economic disparities.[39]

The problem is exacerbated in cases involving children or those without a work history: To project future earnings in these situations, forensic economists often rely on statistical tables that incorporate demographic averages.[40] Race- and gender-based wage tables assume that women and people of color will earn less than white men and will spend fewer years in the workforce.

In addition to incorporating the race- and gender-based wage gap, demographic tables may rely on generic assumptions regarding life expectancy and persistent stereotypes that women will have truncated careers because of marriage and motherhood.[41] Accordingly, the use of such tables quite literally devalues the lives of women and people of color, particularly Black and Latino individuals.

The effect of using race- and gender-based wage tables can be significant. A 2016 Washington Post analysis found that a Black woman under the age of 25 who was injured and unable to work would recover only $1.24 million in future lost wages, while a white man with the same educational background would recover $2.28 million — a whopping 84% more.[42]

Advocates and legal scholars have drawn attention to the problems with using race- and gender-based data in civil damages awards,[43] and some courts have rejected the reliance on such statistics to calculate damages as discriminatory[44] and even unconstitutional.[45]

Meaningful legislative reform, however, has progressed more slowly. In September 2019, Sens. Cory Booker, D-N.J., and Kirsten Gillibrand, D-N.Y., introduced the Fair Calculations in Civil Damages Act, which would prohibit the consideration of race, ethnicity, gender, religion or sexual orientation in calculating civil damages, but the bill never made it out of committee.[46]

Currently, California is the only state to have enacted legislation prohibiting reduction of personal injury or wrongful death damages based on race, ethnicity or gender.[47] Passed in July 2019, this relatively new California law may pave the way for other states to follow suit.

We hope that the publicity surrounding the controversial use of race-norming in the NFL concussion settlement, and the league’s subsequent about-face, will also bring greater attention to these other legal contexts in which the harms suffered by women and nonwhite individuals are deemed to be worth less. In both spheres, with all else being equal, these individuals suffer a harsh financial penalty for discriminatory reasons.

Conclusion

In its best manifestations, the law may be used as one tool, in conjunction with other forms of advocacy, to right injustices. Here, the impending revision of the NFL concussion settlement is a positive development brought about by a combination of strategic litigation, publicity and social action.

And it may not have occurred but for the current climate of increased awareness and activism on issues of race and systemic inequality. We hope that similar methods will be used to cast light on other biased and unjust practices — even those believed to be objective, impartial or standard — to ameliorate long-standing inequities in other areas.


Andrew Melzer is a partner and co-chair of the wage and hour practice group at Sanford Heisler Sharp LLP.

Rebecca Ojserkis is an associate at the firm.

Lucy Zhou is an associate at the firm.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Complaint, Henry v. Nat’l Football League, No. 2:20-cv-4165 (E.D. Pa. Aug. 25, 2020), ECF No. 1; see also, e.g., Pete Madden, Cho Park & Ryan Smith, Clinicians Fear NFL’s Concussion Settlement Program Protocols Discriminate Against Black Players, ABC News (Feb. 3, 2021), https://abcnews.go.com/Sports/clinicians-fear-nfls-concussion-settlement-program-protocols-discriminate/story?id=75646704. For the underlying lawsuit and settlement, see In re National Football League Players’ Concussion Injury Litigation, No. 2:12-md-2323 (E.D. Pa.) [hereinafter Concussion Injury Litig.]; Official NFL Concussion Settlement Website, https://www.nflconcussionsettlement.com (last visited June 29, 2021).
[2] https://www.parinc.com/Products/Pkey/357.
[3] See, e.g., Katherine L. Possin, Elena Tsoy & Charles C. Windon, Perils of Race-Based Norms in Cognitive Testing: The Case of Former NFL Players, 78 JAMA Neurology 377 (2021); Mary Harris, The Same Warped, Racist Logic Used by the NFL Is Ubiquitous in Medicine, Slate (June 7, 2021), https://slate.com/technology/2021/06/race-norming-nfl-medicine-racism-discrimination.html; Jessica P. Cardeña, Marie V. Plaisime & Jennifer Tsai, From Race-Based to Race-Conscious Medicine: How Anti-Racist Uprisings Call Us to Act, 396 Lancet 1125 (2020); Kevin S. McGrew & Dale G. Watson, Applied Psychometrics 101 Brief # 14: Demographically Adjusted Neuropsychological (Heaton) Norm-Based Scores Are Inappropriate for the Diagnosis of MR/ID, Intellectual Competence & the Death Penalty (July 11, 2012), https://iqmrdeathpenalty.blogspot.com/2012/07/ap-101-brief-14-demographically.html.
[4] See, e.g., Zachary Zagger, NFL Seeks to End Race-Based Concussion Tests After Outcry, Law360 (June 2, 2021), https://www.law360.com/articles/1390419/nfl-seeks-to-end-race-based-concussion-tests-after-outcry.
[5] Order at 1 n.1, Henry, No. 2:20-cv-4165 (E.D. Pa. Mar. 8, 2021), ECF No. 40.
[6] Id. at 1; Order, Concussion Injury Litig., No. 2:12-md-2323 (E.D. Pa. Mar. 8, 2021), ECF No. 11302.
[7] Notice of Appeal, Henry, No. 2:20-cv-4165 (E.D. Pa. Mar. 8, 2021), ECF No. 41.
[8] Motion to Intervene and to Stay Mediation, Concussion Injury Litig., No. 2:12-md-2323 (E.D. Pa. Mar. 15, 2021), ECF No. 11306.
[9] See, e.g., Zagger, supra note 3; NFL Pledges to Stop ‘Race-Norming,’ Review Past Scores for Potential Race Bias, NFL (June 2, 2021), https://www.nfl.com/news/nfl-pledges-to-stop-race-norming-review-past-scores-for-potential-race-bias.
[10] Following the NFL’s media announcement, the court permitted the Henry plaintiffs to intervene in the mediation with the Magistrate Judge for the purpose of helping to develop replacement claims protocols. Explanation and Order, Concussion Injury Litig., No. 2:12-md-2323 (E.D. Pa. June 3, 2021), ECF No. 11368. It is critical to ensure that any new provisions not recreate the same problems or similar ones. The Magistrate has now announced that a settlement on the revised claims assessment standards may be expected by the end of the summer. See Zachary Zagger, NFL ‘Race Norming’ Settlement Expected by End of Summer, Law360 (June 15, 2021), https://www.law360.com/articles/1394186.
[11] See, e.g., Peniel Joseph, Opinion, The NFL’s Racial Justice Efforts Fall Far Short, CNN (Sept. 11, 2020), https://www.cnn.com/2020/09/11/opinions/nfl-should-do-more-for-racial-and-social-justice-joseph/index.html.
[12] As former player Ken Jenkins, who organized a petition against race norming, put it, “I’ll believe it when I see it.” Will Hobson, NFL Says It Will End Controversial ‘Race-Norming’ in Concussion Settlement with Players, Wash. Post (June 3, 2021), https://www.washingtonpost.com/sports/2021/06/03/nfl-concussion-settlement-race-norming.
[13] Zachary Zagger, Ex-NFLer Questions Settlement Denial after Race Bias Claims, Law360 (Oct. 27, 2020), https://www.law360.com/articles/1323120/ex-nfler-questions-settlement-denial-after-race-bias-claims.
[14] Gordon appealed to the U.S. Court of Appeals for the Third Circuit, seeking a remand requiring the district court to set forth the factual basis for reversing his claim award. The matter was scheduled for oral argument on June 22, 2021, but the panel canceled the argument on June 10, indicating that it intended to rule on the papers. See Zachary Zagger, 3rd Circ. Cuts Oral Arguments on Player’s Settlement Denial, Law360 (June 11, 2021), https://www.law360.com/employment-authority/articles/1393367. It is not clear whether the NFL’s June 2, 2021 announcement on race norming and the district judge’s subsequent intervention ruling factored into the Third Circuit’s order.
[15] See Madden, Park & Smith, supra note 1.
[16] See generally Meredith A. Anderson, Atul Malhotra & Amy L. Non, Could Routine Race‑Adjustment of Spirometers Exacerbate Racial Disparities in COVID-19 Recovery?, 9 Lancet Respiratory Med. 124, 125 (2021) (“[R]ace corrections reinforce assumptions about innate biological differences between races, which is a pervasive problem across medical practice.”).
[17] See Scott Stump, Most NFL Players Are Black. So Why Aren’t There More Black Head Coaches?, NBC News (Sept. 15, 2020), https://www.nbcnews.com/news/nbcblk/most-nfl-players-are-black-so-why-aren-t-there-n1240131.
[18] Official NFL Concussion Settlement Website, https://www.nflconcussionsettlement.com (last visited July 7, 2021).
[19] Significantly, race norming fails to account for the fact that race cannot be neatly categorized into discrete boxes. The concept of race norming is both morally and practically unworkable.
[20] See The NFL Will Stop Assuming Racial Differences When Assessing Brain Injuries, NPR (June 2, 2021), https://www.npr.org/2021/06/02/1002627309/nfl-says-it-will-halt-race-norming-and-review-brain-injury-claims.
[21] See, e.g., Mike Florio, Lawyer Admits Error in Allowing Race-Norming to Affect Concussion Settlement, NBC Sports (June 2, 2021), https://profootballtalk.nbcsports.com/2021/06/02/lawyer-admits-error-in-allowing-race-norming-to-affect-concussion-settlement.
[22] See Cal. Code Civ. P. § 1001. A bill that would expand current protections to include harassment and discrimination based on race and other protected characteristics is currently making its way through the California legislature. See S.B. 331, 2021–2022 Leg., Reg. Sess. (Cal. 2021).
[23] In discrimination cases, New York now prohibits settlement terms that “would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the plaintiff’s preference.” N.Y. C.P.L.R. § 5003-b. The law includes procedural provisions, namely a 21-day waiting period, intended to ensure that this preference is voluntary, see id., but they may not be sufficient.
[24] See, e.g., Lundy Braun, Race Correction and Spirometry: Why History Matters, 159 Chest 1670 (2021). Ramin Skibba, The Disturbing Resilience of Scientific Racism, Smithsonian Mag. (May 20, 2019), https://www.smithsonianmag.com/science-nature/disturbing-resilience-scientific-racism-180972243; Michael E. Ruane, A Brief History of the Enduring Phony Science that Perpetuates White Supremacy, Wash. Post (Apr. 30, 2019), https://www.washingtonpost.com/local/a-brief-history-of-the-enduring-phony-science-that-perpetuates-white-supremacy/2019/04/29/20e6aef0-5aeb-11e9-a00e-050dc7b82693_story.html.
[25] See, e.g., Nigel Eastman & Colin Campbell, Neuroscience and Legal Determination of Criminal Responsibility, 7 Nature Revs.: Neurosci. 311, 313 (2006) (discussing the methodological and interpretation issues inherent in neuroimaging).
[26] See Darshali A. Vyas, Leo G. Eisenstein & David S. Jones, Hidden in Plain Sight—Reconsidering the Use of Race Correction in Clinical Algorithms, 383 New Eng. J. Med. 874, 880 (2020) (“[I]f the underlying data reflect racist social structures, then their use in predictive tools cements racism into practice and policy. When these tools influence high-stakes decisions, whether in the clinic or the courtroom, they propagate inequity into our future.”).
[27] See, e.g., Amy Moran-Thomas, Oximeters Used to be Designed for Equity. What Happened?, Wired (June 4, 2021), https://www.wired.com/story/pulse-oximeters-equity.
[28] See, e.g., Ifeoma Ajunwa, The Paradox of Automation as Anti-Bias Intervention, 41 Cardozo L. Rev. 1671, 1692–707 (2020).
[29] See, e.g., Aziz Z. Huq, Racial Equity in Algorithmic Criminal Justice, 68 Duke L.J. 1043, 1076–82 (2019).
[30] See, e.g., Andrew D. Selbst, A New HUD Rule Would Effectively Encourage Discrimination by Algorithm, Slate (Aug. 19, 2019), https://slate.com/technology/2019/08/hud-disparate-impact-discrimination-algorithm.html.
[31] See, e.g., Robert M. Sanger, IQ, Intelligence Tests, “Ethnic Adjustments,” and Atkins, 65 Am. U. L. Rev. 87 (2015); see generally Atkins v. Virginia, 536 U.S. 304 (2002) (prohibiting the execution of defendants with intellectual disabilities as violating the Eighth Amendment’s protection against cruel and unusual punishment).
[32] See, e.g., Galen V. Bodenhausen & Meryl Lichtenstein, Social Stereotypes and Information-Processing Strategies: The Impact of Task Complexity, 52 J. Personality & Soc. Psych. 871, 872 (1987) (noting that “heuristic judgment strategies are more likely to be used by decision makers when the task confronting them is relatively complex”).
[33] See, e.g., Heather M. Kleider-Offutt et al., Working Memory and Cognitive Load in the Legal System: Influences on Police Shooting Decisions, Interrogation and Jury Decisions, 5 J. Applied Rsch. Memory & Cognition 426, 429–31 (2016); Ad van Knippenberg et al., Judgement and Memory of a Criminal Act: The Effects of Stereotypes and Cognitive Load, 29 Eur. J. Soc. Psych. 191, 198 (1999).
[34] See, e.g., Roseanna Sommers, Note, Will Putting Cameras on Police Reduce Polarization?, 125 Yale L.J. 1304 (2016); see also Timothy Williams et al., Police Body Cameras: What Do You See?, N.Y. Times (Apr. 1, 2016), https://www.nytimes.com/interactive/2016/04/01/us/police-bodycam-video.html.
[35] See, e.g., Diego Fernandez-Duque et al., Superfluous Neuroscience Information Makes Explanations of Psychological Phenomena More Appealing, 27 J. Cognitive Neurosci. 926, 938 (2015) (“Across four experiments, the presence of irrelevant neuroscience information made arguments more compelling.”); Deena Skolnick Weisberg et al., The Seductive Allure of Neuroscience Explanations, 20 J. Cognitive Neurosci. 470, 475 (2008) (finding in an experiment that “extraneous neuroscience information ma[d]e explanations look more satisfying than they actually [we]re, or at least more satisfying than they otherwise would be judged to be”).
[36] See, e.g., Possin, Tsoy & Windon, supra note 2.
[37] See Vyas, Eisenstein & Jones, supra note 26, at 880 (“To be clear, we do not believe that physicians should ignore race. Doing so would blind us to the ways in which race and racism structure our society. However, when clinicians insert race into their tools, they risk interpreting racial disparities as immutable facts rather than as injustices that require intervention. Researchers and clinicians must distinguish between the use of race in descriptive statistics, where it plays a vital role in epidemiologic analyses, and in prescriptive clinical guidelines, where it can exacerbate inequities.”).
[38] Michael L. Brookshire, Michael R. Luthy & Frank L. Slesnick, A 2009 Survey of Forensic Economists: Their Methods, Estimates, and Perspectives, 21 J. of Forensic Economists 5, 11 (2009).
[39] See Dariely Rodriguez & Hope Kwiatkowski, Lawyers’ Comm. For C.R. Under L., How Race, Ethnicity, and Gender Impact Your Life’s Worth: Discrimination in Civil Damage Awards 3 (2018), https://lawyerscommittee.org/wp-content/uploads/2018/07/LC_Life27s-Worth_FINAL.pdf.
[40] Id.
[41] Id. at 5.
[42] Kim Soffen, In One Corner of the Law, Minorities and Women Are Often Valued Less, Wash. Post, Oct. 25, 2016, https://www.washingtonpost.com/graphics/business/wonk/settlements/.
[43] See, e.g., Rodriguez & Kwiatkowski, supra note 39; Kimberly A. Yuracko & Ronen Avraham, Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages, 106 Cal. L. Rev. 325 (2018); Martha Chamallas, Questioning the Use of Race-Specific and Gender-Specific Economic Data in Tort Litigation, 63 Fordham L. Rev. 73 (1994).
[44] See, e.g., Reilly v. United States , 863 F.2d 149, 167 (1st Cir. 1988) (rejecting argument that prospective lost earnings should be reduced based on gender because “it can no longer automatically be assumed that women will absent themselves from the work force for prolonged intervals during their child-bearing/child‑rearing years”); see also United States v. Bedonie , 317 F. Supp. 2d 1285, 1319 (D. Utah 2004) (refusing to discount victims’ lost income based on race or sex because to do so would result in the “possible perpetuation of inappropriate stereotypes”), rev’d on other grounds sub nom., United States v. Serawop , 410 F.3d 656 (10th Cir. 2005).
[45] G.M.M. ex rel. Hernandez-Adams v. Kimpson , 116 F. Supp. 3d 126, 152 (E.D.N.Y. 2015) (concluding that the use of race-based statistics to reduce a damages award violates due process and equal protection); McMillan v. City of New York, 253 F.R.D. 247, 255–56 (E.D.N.Y. 2008) (same).
[46] S. 2512, 116th Cong. (2019).
[47] S.B. 41 (Cal. 2019); Nora Freeman Engstrom & Robert L. Rabin, California Bars the Calculation of Tort Damages Based on Race, Gender and Ethnicity, SLS Blogs (Nov. 13, 2019), https://law.stanford.edu/2019/11/13/california-bars-the-calculation-of-tort-damages-based-on-race-gender-and-ethnicity.

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